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National Tobacco Company of India Ltd. Vs. Authority Under Payment of Wages Act and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1967)IILLJ101Cal
AppellantNational Tobacco Company of India Ltd.
RespondentAuthority Under Payment of Wages Act and ors.
Cases ReferredTata Iron and Steel Co. Ltd. v. S. N. Modak
Excerpt:
- .....for breach of contract, on the ground that the dismissal was wrongful; but respondent 2 could not claim wages as he did not render any service to the petitioner. in support of this contention sri ginwalla relied upon the definition of wages in section 2(vi) of the act which runs as follows:2. (vi) 'wages' means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes...7. relying upon the definition of wages in the act sri ginwalla argued that before wages could be earned by an employee he must fulfill the terms of employment,.....
Judgment:

B.C. Mitra, J.

1. In this application the petitioner seeks appropriate writs and order prohibiting the respondents from enforcing, giving effect to and acting upon an order dated 7 July 1964, and also to forbear from entertaining an application being Application No. 67 of 1964 and for quashing the said order.

2. The petitioner's business consists in the manufacture and sale of cigarettes at its factory at Agarpara, in the district of 24-Parganaa. Respondent 2 was, until he was dismissed, as hereinafter mentioned, an employee of the petitioner at the said factory as a member of the watch and ward staff. It la alleged that on the night of 29 December 1961, respondent 2 was found Bleeping at about 10-50 p.m. Thereupon he was charged by the petitioner with misconduct, and after an enquiry had been held, respondent 2 was dismissed by the petitioner on or about 6 January 1962. As at the date of the dismissal proceedings were pending before First Industrial Tribunal, under a reference relating to an industrial dispute, the petitioner on or about 17 April 1962, made an application under Section 33(2)(6) of the Industrial Disputes Act, 1947, for approval of the action taken by it In dismissing respondent 2.

3. The case was thereafter transferred to the second labour court and this Court, by an order dated 26 November 1963, refused to accord approval to the petitioner's order dismissing respondent 2. The petitioner's case is that respondent 2 did not present himself for work at the petitioner's factory until 20 April 1964, on which date the petitioner took respondent 2 back to this employment.

4. On 15 April 1964, respondent 2 made an application under the Payment of Wages Act, 1936 (hereinafter referred to as the Act), to respondent 2 who la the authority under the said Act. In this application respondent 2 made a claim for Rs. 2.067.21 for wages from December 1961 to March 1964, and Rs. 10 by way of compensation. Respondent 2 further prayed for condonation of the delay in making the application on the ground that the cause of action arose on 27 November 1963, when the petitioner's said application was rejected by the second labour court.

5. On 9 June 1964, the petitioner filed a written statement In which it was contended that respondent 1 had no jurisdiction to entertain the said application. On 7 July 1964, respondent 1 made an order by which he held that he had jurisdiction to entertain the said application and further that there was sufficient cause for condoning the delay. It Is this order which is the subject-matter of challenge in this application.

6. Appearing for the petitioner Sri Ginwalla contended that respondent 2 could not claim any wages as wages had to be earned by an employee. It was argued that respondent 2 might have a valid claim in damages, for breach of contract, on the ground that the dismissal was wrongful; but respondent 2 could not claim wages as he did not render any service to the petitioner. In support of this contention Sri Ginwalla relied upon the definition of wages in Section 2(vi) of the Act which runs as follows:

2. (vi) 'wages' means all remuneration (whether by way of salary, allowances or otherwise) expressed In terms of money or capable of being so expressed which would, If the terms of employment, express or implied, were fulfilled, be payable to a person employed In respect of his employment or of work done in such employment, and Includes...

7. Relying upon the definition of wages in the Act Sri Ginwalla argued that before wages could be earned by an employee he must fulfill the terms of employment, express or implied. In other words, it was argued that unless the terms of employment were fulfilled, an employee could not be said to have earned the wages which he claimed. In this case the terms of employment were not fulfilled, as respondent 2 did not render services to the petitioner, which was a condition precedent to his earning any wages, and this condition precedent, namely, the rendering of service to the petitioner, not having been fulfilled by respondent 2, he could not make a valid claim for wages and, therefore, respondent 1 had no jurisdiction to entertain the application for wages, nor had he the jurisdiction to condone the delay in making the application, In support of this contention reliance was placed by the learned Counsel for the petitioner on the decision of the Supreme Court in Divisional Engineer, Q. I. P. Railway v. Mahadeo Raghoo and Anr. 1955-I L.L.J. 359 in which while dealing with the question of wages it was held 'shorn of all verbiage,' 'wages' are remuneration payable by an employer to his employee for services rendered according to the terms of the contract between them. Belying upon this decision it was argued that wages is the remuneration payable to an employee, for services rendered; and if an employee rendered no service whatsoever, there could be no question of paying any remuneration, and, therefore, there would be no liability for wages of the employer to the employee. The next case relied upon by Sri Ginwalla was also another decision of the Supreme Court in Bala Subrahmanya Rajaram v. B.C. Patil and Ors. 1058-I L.L.J. 773. In that case also wages was held to be equivalent to remuneration which would, if the terms of the contract of employment were fulfilled, be payable by the employer to the employee, The next case relied upon by Sri Ginwalla is the decision of the Supreme Court in Strawboard Manufacturing Co. v. Govind 1962-I L.L.J. 420, In that case, however, it was held that if the tribunal did not approve of the action taken by the employer, the result would be that the action taken by the employer would fall and the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision for reinstatement was necessary, as the result of the tribunal not approving the action of the employer, would be that the discharge or dismissal of the workman would be of no effect, and the workman concerned would be in the service of the employer as if there was no dismissal or discharge, and for this reason the order of discharge or dismissal passed by an employer did not become final until it was approved by the tribunal under Section 33(2) of the Industrial Disputes Act.

8. The next contention of Sri Ginwalla was that respondent 2 was not entitled to any wages for the period during which he did not render any service to the petitioner but he might be entitled to damages for wrongful dismissal. In support of this contention reliance was placed by Sri Ginwalla on the Law of Master and Servant by A, B. Diamond, p. 214.

9. The next contention of Sri Ginwalla was that there was an error of law on the face of the records as the claim of respondent 2 for back-wages was clearly barred by limitation, and respondent 1 had no jurisdiction to condone the delay in making the application. In support of this contention Sri Ginwalla referred to proviso 1 to Section 15(2) of the Act which provides that every application shall be presented within six months from the date on which the reduction from the wages was made or from the date from which the payment of wages was due to be made. Proviso 2 to Section 15(2) requires that any application may be admitted after the said period of six months, when the applicant satisfies the authority that he had sufficient cause for not making the application within such period. Belying upon these provisions In the Act, it was argued, that respondent 1 had no Jurisdiction to condone the delay, as the application for the back-wages had been made long after the expiry of the period provided by the proviso 1 to Section 15(2) of the Act. Sri Ginwalla argued that respondent 2 should have claimed the wages each month as it fell due, Instead of waiting for the order of the labour court refusing to approve of the order of dismissal. In support of this contention reliance was placed by Sri Ginwalla on the decision of the Supreme Court In Sitaram Ramcharan and Ors. v. M. N. Nagrashna 1960-I L.L.J. 29. In that case it was held that it was not enough merely to furnish explanation for not making the application within the period of six months, but that sufficient cause must be shown for not making the application for the whole period of delay and not only for the period of six months. Reliance was also placed by Sri Ginwalla on a decision of this Court In B. N. Elias & Co. (Private), Ltd. v. Payment of Wages Authority and Ors. 1961-II L.L.J. 297. In that case it was held that the question whether there was sufficient cause for not condoning the delay under Section 15(2) of the Act was a mixed question of law and fact. It was also held that not only negligence but Inaction should also be taken into account, and an explanation should be given for the whole period of delay and not only for the period of six months. It was further held that the period of six months would not be calculated from the last day of the correspondence, if there was correspondence and that this was an error on the face of the records. Relying upon this decision, Sri Ginwalla argued that in this case also it was assumed by respondent 1 that the period of limitation had to be calculated from the date of the order made by the labour court. This Sri Ginwalla contended was an error apparent on the face of the records. The next case relied upon by fir Ginwalla was a decision of the Allahabad High Court in Sheoprosad v. Additional District Judge 0043/1962 : AIR1962All144 . In that case it was held that the wages fell flue In the year of removal from service and that the starting point of limitation was the date of either suspension or removal and not the date of reinstatement. Relying upon this decision Sri Ginwalla argued that the claim of the petitioner for back-wages was clearly barred by limitation and that respondent 1 had no Jurisdiction to make an order condoning the delay. It was argued that the law is now well-settled that where a person is suspended or removed from service, limitation under Section 15(2) of the Act will start to run from the date of the removal or suspension and not from the subsequent date when an order declaring the removal or suspension to be illegal or an order reinstating him in service was made. It was, therefore, contended by Sri Ginwalla that respondent 1 had no jurisdiction to make the order condoning the delay under Section 15(2) of the Act.

10. Sri Manash Roy, learned advocate for respondent 2, contended that the contentions now raised on behalf of the petitioner were not raised before the tribunal and, therefore, the petitioner should not be allowed to urge those contentions in this application. It was argued that no order had yet been made by the tribunal but only an order condoning the delay had been made and, therefore, the petitioners were not entitled to any relief in this application.

11. The next contention of Sri Roy was that this Court had no jurisdiction to Interfere with the impugned order as this Court was not sitting in appeal over the decision of respondent 1. Sri Roy argued that even if the tribunal had decided wrongly this Court in exercise of its writ jurisdiction could not revise or set aside or otherwise interfere with the decision of respondent 1 in an application under Article 226 of the Constitution. In support of this contention reliance was placed by Sri Roy on the decision of the Supreme Court in Hari Vishnu Kamath v. Syed Ahamad Ishaque and Ors. 1955 S.C.A. 105. In that case it was held that certiorari would be issued for correcting errors of jurisdiction when the Inferior court or tribunal acted without jurisdiction or in excess of it or failed to exercise such jurisdiction. Secondly, this writ would also be issued when the tribunal acted illegally in the exercise of its jurisdiction as when it decided matters without giving an opportunity to the parties to be heard. Thirdly, the Court Issuing a writ of certiorari acted in exercise of a supervisory and not appellate Jurisdiction and, therefore, the Court) would not review the findings of fact reached by the Inferior court or the tribunal even If such findings of fact were erroneous. Fourthly, it was held that an error in the decision might be amenable to a writ of certiorari but such error must be a manifest error apparent on the face of the proceedings, e.g., when the decision was based on clear ignorance or disregard of the provisions of law. It was a patent error, it was held, which could be corrected by certiorari but not a mere wrong decision.

12. It is true that if the tribunal had merely come to a wrong decision, then this Court in exercise of its writ jurisdiction could not interfere with such a decision merely because a wrong inference has been drawn from the facts or the tribunal has failed to correctly appreciate the evidence before it. But where the error is manifest and apparent on the face of the records, namely, where it is based on clear Ignorance or disregard of provisions of law, such an error can be corrected by a writ of certiorari. In this case the order condoning the delay has been made by respondent 1 in total disregard of the settled law, namely, that limitation should run not from the date when the labour court refused to approve of the order of dismissal under Section 33(6) of the Industrial Disputes Act but from the date of termination of service which is 6 January 1962. Respondent 1 has, in my view, quite clearly failed to apply the law which is now well-settled, namely, that limitation under proviso 1 to Section 15(2) of the Act commenced not from the date when the tribunal refused to sanction the order of dismissal under Section 33(2)(b) of the Act but from the date of dismissal of respondent 2 on 6 January 1962. This error, in my view, is an error apparent on the face of the records and a writ of certiorari can be issued for the purpose of dealing with such an error.

13. Reliance was next placed by Sri Roy on the decision of this Court in Parry's (Calcutta) Employees' Union v. Parry & Co., Ltd,, and Ors. 1966-I L.L.J. 635, in support of the proposition that this Court should not review the findings of fact arrived at by respondent 1, even though they be erroneous unless the error was a manifest error apparent on the face of the proceedings. But this decision, in my view, Is of no assistance to Sri Roy, as in this case the error of law is apparent on the face of the records in so far as respondent 1 condoned the delay in making the application, and in doing so ha failed to apply the principles relating to limitation which are now well-settled.

14. The next contention of Sri Roy was that respondent 1 has not yet made any order directing the petitioners to pay the wages of respondent 2. He argued that all that has been done by the impugned order is that the has been condoned and the application has been entertained by respondent 1. if upon a full hearing of the matter, Sri Roy argued, an order for the wages claimed by respondent 2waa made by respondent, it would be open to the petitioners to come and challenge this order on the grounds urged by the petitioners. In other words, Sri Roy argued that the application is premature at this stage and for that reason, it is not maintainable. The next contention of Sri Roy was that even If the claim for the entire period was barred by limitation, the claim for the last six months could not, in any event, be said to be barred, and respondent 2 had a valid claim for the last six months, and, therefore, respondent 1 had lawfully made the order condoning the delay.

15. The next contention of Sri Roy was that the effect of the labour court's refusal to approve of the dismissal under Section 33(2)(6) of the Act was that respondent 2 must be deemed to be In the service of the petitioners from the date of dismissal and, therfore, respondent 2, it was argued, would be entitled to the wages for the entire period commencing from the date of dismissal up to the date when the tribunal made the order refusing the petitioners' application under S, 33 (2)(b) of the Act. In support of this contention reliance was placed by Sri Roy on the decision of the Supreme Court in Strawboard Manufacturing Co. v. Govind 1962-I L.L.J. 420 (vide supra). In that case it was held that In such a case no specific provision as to reinstatement was necessary and that by the very fact of the tribunal not approving the action of the employer the dismissal or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer.

16. The next case relied upon by Sri Boy in support of this contention was also a decision of toe Supreme Court in Tata Iron and Steel Co. Ltd. v. S. N. Modak 1965-II L.L.J. 128. In that case it was held that if approval was not granted by the tribunal to the order of dismissal, such an order of dismissal or discharge passed by the employer would be wholly invalid or inoperative and the employee could legitimately claim to continue in the employment of the employer, notwithstanding the order dismissing or discharging him, Sri Roy argued that if the employee could legitimately claim to continue to be in the employment of the employer in spite of the order of dismissal or discharge passed against him, the employee would certainly be entitled to claim Ma wages for the period.

17. In my opinion, this contention of Sri Roy seems to be well-founded. The two decisions of the Supreme Court on which reliance was placed by Sri Roy discussed above, plainly lay down the law, namely, that where the tribunal had refused to approve of an order of dismissal the employee is entitled to claim to be in the service of the employer for the entire period. If such an employee is so entitled, he certainly would be entitled to claim the wages, if in law his employment continues under the employer. It may be, as the fact is in this case, that respondent 2 did not render any service to the employer to earn the wages but nevertheless the law provides that he is entitled to claim to be in the employment for the entire period, commencing from the date of dismissal until the date when the labour court or the tribunal refused to make an order sanctioning or approving of the order of dismissal. In that view of the matter it cannot be Bald that the employee is not entitled to the wages to which he would be entitled as an employee. But such a claim of wages made under the Act must necessarily be subject to the limitation provided thereunder. As I have discuss; 1 earlier in my judgment, petitioner's (sic) claim must be scrutinized on the basis of the bar of limitation provided in the statute itself. Although, therefore, petitioner (sic) would be entitled to his wages, if he has got a valid claim, such a claim must be subject to the bar of limitation provided in the statute and respondent 1 cannot, In my view, proceed to condone the delay In making the application for a claim for the entire period. There Is nothing In the Impugned order to show that respondent 1 was proceeding to consider the claim of respondent 2 only with regard to the claim for wages for the last six months to which respondent 2 might be entitled. On the other hand, the impugned order shows that the delay has been cordoned for the entire claim and this, in my view, respondent 1 was not entitled to do. The order condoning the delay wan made in complete disregard of the principles of limitation applicable to the case and this order, in my view, cannot stand.

18. Before I conclude I should refer to the other contention of Sri Roy, namely, that the questions raised in this application were not raised by the petitioner before respondent 1. It is true that this question was not raised before respondent 1, tout such an omission on the part of the petitioner does not debar it from raising the question in a writ petition where there is an error of law apparent on the face of the record, as in this case. Where, as in this case, respondent 1 is proceeding to assume jurisdiction to deal with the question of claim for wages for the entire period disregarding the bar of limitation, it must be held that there is an error of law apparent on the face of the record and mere omission on the part of the petitioner to raise this question before respondent 1 cannot, in my view, be such a formidable objection as to deny relief to the petitioner If it is otherwise entitled to such a relief. In my opinion, the petitioner is entitled to the relief it has claimed in this petition as there is an error of law apparent on the face of the record.

19. For the reasons mentioned above the application must succeed. The rule is made absolute. Let a writ of certiorari issue for quashing the order made by respondent 1 being the order dated 7 July 1964. I which to make It clear, however, that this order will not debar respondent 2 or prevent respondent 1 from proceeding to deal with the claim of respondent 2 IB the light of the observations made In this judgment and In accordance with law. Each party to pay its own costs. Let the records be sent back.


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